Political Hay

Stand and Deliver: Opposing Obama’s Court Nominee

A lesson from Jack Kemp on the importance of standing up for principle.

By 5.5.09

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Be a leader.

These, said Jack Kemp, were the last words he always said to his children when they left the house.

In the shadow of his passing, Kemp's words should serve as a beacon to Republican members of the United States Senate and conservative activists in general as they await a nominee from President Obama to replace Justice David Souter on the United States Supreme Court.

Back in 1978, when then-Congressman Kemp was leading what would become the revolution that launched an American renaissance, he failed. Not only could he not overcome liberal resistance to the critical nature of tax cuts to working men and women, he couldn't even convince a number of Congressional Republicans to stand up for conservative economic principles.

Decades later, well after his ideas had long since swept America and the world to a period of unparalleled growth and opportunity, Kemp recalled that on 13 different occasions his efforts had been blocked in the U.S. House not just by the usual Democrats -- but by Republicans who simply would not stand up for the most elementary of conservative principles: that the economy works best when Americans -- not the government -- have control of their own money. In Kemp's own words, "some congressional Republicans colluded with liberal Democrats" and ran from conservative principles.

Such a moment is at hand again, providing Republicans in the U.S. Senate and conservative activists with a golden opportunity to stand up for the principles of conservative judicial philosophy. The question is, will they seize that moment? Or, as Kemp said of those Republican House members from 1978, will they "collude with liberal Democrats" in the Senate and "sacrifice the well-being of the nation…. in order to satisfy their biases," biases that mean abandoning conservative principle for short-term political gain?

It is precisely such a moment as the resignation of Justice David Souter that liberals have been waiting for -- a chance for a liberal president to make a new appointment to the Court. While they would surely have preferred to be replacing a conservative, the opportunity to appoint a younger, even more liberal version of Souter will do just fine. They have a liberal in the White House and are within a hair of a filibuster-proof majority in the Senate. The thought that President Obama will somehow do anything less than maximize this opportunity to find a vigorous and skilled liberal nominee bears no relation to political reality. The president will find his liberal appointee, and that liberal appointee will be approved.

So the question for Senate Republicans and conservatives is as simple as it is stark. Do they, as was done with the appointments by President Clinton of Justices Ruth Bader Ginsburg and Stephen Breyer -- fold their political tent? Do they -- as some House Republicans did in sticking with the vividly failed economics of President Jimmy Carter over Jack Kemp, just collude with the Democrats? Because, well, it's so much safer politically? In this case, which involves conservative judicial philosophy as opposed to economic policy, will they just roll over for Obama as they did for Clinton? Will they in docile fashion applaud the nominee's surely wonderful credentials and vote overwhelmingly with the Democrats? Will they allow themselves to be intimidated because the nominee is a woman, a Hispanic, a black, a gay, a Catholic, a Jew, or some other? Even knowing that if the nominee were a conservative put forward by a conservative president and in any of these categories, liberals would quickly seek to savage that nominee not only politically but personally? (See confirmation of Thomas, Clarence.)

Or should they take Jack Kemp's words to heart? For that matter, should they take Kemp's own career as both tenacious quarterback and Congressman to heart -- and fight? Fight as Kemp always did -- openly, cleanly and above board, brimming with enthusiasm for the conservative principle at hand. Fight by generously praising the person Obama nominates, admiring their legal credentials, their fine family and education -- yet fervently opposing the new Court nominee's judicial philosophy in the name of conservative principles of jurisprudence?

It should be noted here that when President George W. Bush nominated John Roberts and Samuel Alito to be, respectively, chief justice and associate justice of the Court, it would have been hard to find two more superbly qualified nominees. By common consent within the legal community the two were among the best of their generation, if not the best. Yet both then-Senators Barack Obama and Joe Biden opposed Roberts and Alito regardless, going out of their way to make the case for liberals on the federal bench. Neither man shied or shimmied on the issue. In fact, Biden has been following the path of open opposition to well-qualified conservatives on the Supreme Court since the historic battle over Ronald Reagan's nomination of Robert Bork way back in 1987.

Senate Republicans, unfortunately, have been slow on the uptake here. Shunning a defense of conservative judicial principles, in the name of bipartisanship Senate Republicans acted precisely as their House counterparts did with Jack Kemp on the economic question back in 1978. Instead of fighting for principle, they joined Democrats in providing the liberal Ginsburg with a 96-3 vote in favor of her confirmation. When a second opening presented itself, the Clinton nomination of Breyer was also approved overwhelmingly by Republicans, with the liberal jurist receiving an 87-9 favorable vote.

Yet if these kind of collegial nods to a Democrat in the White House or Democrat colleagues in the then-Senate majority were thought of as something that would be reciprocated when a Republican was occupying 1600 Pennsylvania Avenue and appointing judges, guess again.

After the Bork defeat, Democrats increasingly refused outright to ever again show the once routine support for Court nominees from Republican presidents as the GOP would later show Clinton. Urged on by far-left special interest groups such as People for the American Way, they opposed Clarence Thomas 52-48, John Roberts 78-22, and Samuel Alito 58-42, the latter, in a stunning display of partisanship, receiving only four votes from Senate Democrats. Worse still, Democrats took the fight to the lower levels of the federal judiciary, refusing even to allow a vote on the Senate floor for various nominees. Notably, they went out of their way to wreck the prospective judicial career of one Bush nominee in particular -- the superbly qualified Miguel Estrada. Note well the Hispanic name. Estrada was also an immigrant made good, like Obama himself a star at Harvard Law School. It not only made no difference to Senate Democrats, these were precisely the reasons Democrats refused to confirm him. To quote from an internal Democratic memo of the day, the notion of confirming a Latino who had conservative principles was seen as a "mistake" that must be avoided.

The best defense, as the saying goes, is a good offense. There is a serious, vivid philosophical disagreement between conservatives and liberals over judicial philosophy. This is exemplified in Obama's statement about the type of nominee he will seek to replace Souter:

I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

Conservatives view this statement as a reason someone runs for the legislative body in the American system -- or for president. The role of a judge is to interpret the law, not create it out of whole cloth to appease a political sentiment of the judge of the moment. Empathy is for presidents, congressmen, senators, governors, state legislators and city council members.

Judges are about the law.

Liberals favor judges perhaps best described by Mark Levin in his bestselling book Men in Black as "radicals in robes." They reject out of hand the belief that the federal judiciary has a narrow and decidedly limited role as prescribed by the Constitution. As Levin notes, liberal judges have taken upon themselves the running of school systems, prisons, private sector hiring and firing practices, farm quotas, the raising of property taxes, the granting of benefits to illegal immigrants, the expulsion of God, prayers and the Ten Commandments from the public square, limited political speech, protected child pornography and…well, you get Levin's point. It goes straight to the heart of the conservative case against activist judges.

So the question here is: Will Republicans and conservatives in the United States Senate have the courage to do what Jack Kemp did time after time after time: state their conservative principles, and then with a smile -- and the smile is important -- go fight for them? Regardless of the odds. To do precisely what, for that matter, both Obama and Biden themselves have done: Obama on two out of two Supreme Court votes in his brief Senate career and Biden relentlessly since 1987.

By now it is surely recognized that conservatives are engaged in a long, drawn-out fight over the shape and direction of the federal judiciary. One might even say that conservatives are winning for the moment by a margin of 5-4.

One Supreme Court confirmation defeat does not a lost war make. No one can foresee the future. No one knows what will happen tomorrow, let alone five years or twenty down the judicial pike. But we all know -- or should know -- that Jack Kemp was right: fighting hard for matters of principle is never a losing proposition.

It will be much noted in the next few days just how much of an impact Jack Kemp has made on his party, his country and the world. But perhaps one of the thousand Kemp stories making the rounds among his friends and admirers is this one as reported from the Associated Press (with a hat tip here to Rich Galen's Mullings):

The Detroit Lions picked Kemp in the 17th round of the 1957 NFL draft, but he was cut before the season began. After being released by three more NFL teams and the Canadian Football League over the next three years, he joined the AFL's Los Angeles Chargers as a free agent in 1960. A waiver foul-up two years later would land him with the Bills, who got him at the bargain price of $100.

What this paragraph only hints at is that Kemp was told a number of times that he should give up his dream of playing professional football. That he didn't quite have what it takes. But he hung in there. He ignored the critics. He was cut even before the season began by the Lions -- and kept going. He was shunted off to the Canadian Football League for three years -- and he kept going. He made it to the Chargers, -- only to be, through "a waiver foul-up," sent to Buffalo -- not exactly the star New York team in the big New York town with the Broadway lights. But Kemp went to work and made the Bills a star team, and in doing so made himself a star quarterback as well. He never, ever gave in. He would, years later, hold up his throwing-hand to his staff and joke about his famously fused finger. His hand had been crushed in a game, and the doctors told him the finger joints would have to be fused. Kemp's response? He told them to fuse the finger as it would be when wrapped around a football, leaving him with a finger permanently poised to throw a pass.

By the time he made his way to Congress he did the same with the conservative movement and supply-side economics. Kemp's principles were as fused as that finger. The critics were legion, but he kept going. He never took no for an answer. And in time, the conservative quarterback threw so many conservative philosophical and political touchdowns he changed the world.

There is much sighing and gnashing of teeth among conservatives about a Supreme Court nomination in the hands of President Obama as well as a liberal majority in the Senate. Arlen Specter switched parties! What if Al Franken wins! Horrors!

This is no way to deal with the situation.

It's time to fight. To understand that this one battle over a Supreme Court seat may be lost, but it is most certainly one battle worth fighting. It is a golden opportunity. Now is exactly the time for Republicans in the United States Senate, not to mention that by-now keenly alert coalition of conservative activists who work so hard on these issues, to take to heart Jack Kemp's advice to his kids. When President Obama steps forward with his nominee for the Supreme Court, just smile. Be polite. Be nice. Be ready. Be organized. Deliver every Republican Senate vote that can be had in favor of a conservative judicial philosophy. Make this fight a statement of principle. Stand and deliver.

Remember Jack Kemp's fused finger and throw the conservative long ball, the odds be damned.

As this next Court fight arrives, Kemp's words resonate: Be a leader.

(Mr. Lord, a former aide to HUD Secretary Kemp, is the author of The Borking Rebellion, a book on judicial nomination fights.)

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.